Legal fees but one battle in Aspen ballot case

ASPEN – The city of Aspen on Tuesday filed a slightly amended petition to the Colorado Supreme Court in an ongoing legal battle over former mayoral candidate Marilyn Marks’ quest to view ballots cast in the 2009 city election.

The amended petition clarifies language regarding attorneys fees.

Marks, meanwhile, said overtures to discuss a settlement on the matter of attorneys fees have gone nowhere and that she will now fight for all the fees to which she says she’s entitled. She estimated they totaled $275,000 before the city asked the state Supreme Court last week to reconsider its decision not to take up the case.

The city filed its latest petition after the high court reversed its decision to hear the case of Marks vs. City Clerk Kathryn Koch, allowing the Court of Appeals ruling in the case to stand. The Court of Appeals ruled in Marks’ favor, granting her access to images of ballots from the 2009 election, in which she ran unsuccessfully for mayor.

The amended petition was filed “out of pure overcaution,” City Attorney Jim True said Tuesday. It clarifies that “appellate fees” rather than simply “fees” are at issue, though the city maintains it is not liable for any of Marks’ legal costs.

On Monday, True briefed the City Council on the city’s decision to ask the state Supreme Court to reconsider its decision not to take up the case.

“I looked at it and thought we had a right to ask the Supreme Court to reconsider two issues. It’s as simple as that,” True said Tuesday.

The city, in its latest petition, notes that recent state legislation, which is now law, amended the Colorado Open Record Act, or CORA, to allow examination of voted ballots. The law was not in effect when Marks made her request in 2009.

CORA didn’t allow the examination of ballots in 2009, True said.

“The proof of that is they had to change the law to allow it,” he said.

In addition, the city contends in its petition that the city clerk has a right to a hearing before a court to defend her actions – to show she acted in good faith in denying Marks’ request for ballot images because she couldn’t determine whether disclosure was allowed without a court order. If the clerk acted in good faith, under the law, the city isn’t liable for any attorneys fees, True explained.

The case was dismissed in District Court without a hearing on whether the city properly denied Marks’ request to view ballot images, and no hearing on reasonable attorneys fees has ever taken place. According to the city’s petition, the Court of Appeals erred in awarding appellate attorneys fees to Marks without sending the case back to District Court for a hearing on whether Koch’s denial of Marks’ request was proper.

True said he believes such a hearing would show Koch acted in good faith and that the city is, therefore, not liable for Marks’ legal costs.

Beyond the issues of fees and open records, though, is what the ballots, or ballot images, would show if they were made public.

Marks speculates that the city fears some number of the ballots can be traced back to the voters who cast them, which could lead a court to declare the election void.

“I’m not saying this is the case – that’s just the only think I can come up with,” she said.

“We’re not afraid of that. We didn’t create any traceable ballots,” True said. “That’s not the issue we’re discussing.”

In 2009, the city maintained that the state constitution and municipal election code in Colorado did not allow the release of ballots or ballot images. The district court dismissed the case based on those arguments. What the law did or didn’t allow at the time remains the gist of the case, True said.